Criminal Law Reform and the Persistence of Strict Liability

By Brown, Darryl K. | Duke Law Journal, November 2012 | Go to article overview
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Criminal Law Reform and the Persistence of Strict Liability


Brown, Darryl K., Duke Law Journal


ABSTRACT

Two reform movements transformed American criminal law in the quarter century that began in the late 1960s. Their origins and effects were starkly different, and their conflict meant that, on core choices about the basis for criminal liability, one movement had to win and the other had to lose. The first movement was the wave of criminal code reform inspired by the American Law Institute's Model Penal Code (MPC), first published in 1962. The MPC movement sought to increase the role of culpability as a prerequisite for liability by presumptively requiring proof of mens tea for every element of criminal offenses--a policy that rejected longstanding use of strict liability for significant offense elements. The second movement, which could be called the tough-on-crime movement, became the more significant. This movement led to the transformation of American criminal-justice policy that expanded criminal offenses, enforcement, and sentences, resulting in a national incarceration rate that quintupled and became by far the world's highest.

This Article identifies the twenty-four states that codified the MPC's culpability rules and then recounts an extensive survey of the case law in those states to assess the reforms' effect on judicial interpretation of mens rea requirements. It finds that legislative codifications of presumptions for mens rea have had surprisingly little effect on courts that define mens rea requirements when interpreting criminal statutes. It describes the recurrent rationales that courts use to impose strict-liability elements in a wide range of crimes, notwithstanding statutes that direct presumptions to the contrary. It then offers an explanation for this outcome--a substantial failure of the MPC-inspired revision of criminal codes--that emphasizes the continuing normative appeal of strict liability, the influence of instrumental rationales for punishment, and the limits of the judicial role in an era in which the legislative and executive branches are vastly expanding the reach and severity of criminal punishment.

TABLE OF CONTENTS

Introduction
I.   Judicial Inference of Culpability and Strict Liability
       A. A Note on Methodology
       B. Limits on Culpability Presumptions (Part One): Plain
          Language or Statutory Purpose
       C. Limits on Culpability Presumptions (Part Two):
          Restrictive Application and Non-Acknowledgement
       D. Counterexamples: Taking Culpability Presumptions
          Seriously
       E. Reasons for the Weak Effect of Culpability
          Presumptions
          1. Legislative Drafting
          2. Judicial Role--Inferring Intent Versus Enforcing
             Prior Commitments
II.  Legislative Support for Strict Liability
       A. State Revisions to the MPC Culpability Presumptions
       B. Other Legislative Approval of Strict Liability
III. The Alternative to Proportionate Liability: Strict Liability
     Within the Scope of Culpable Conduct
       A. The Implicit Parameters of Strict Criminal Liability
       B. A Culpability-Based Rationale for Strict-Liability
          Elements
IV.  Why Courts Circumvent Culpability Presumptions
       A. Culpability's Limited Significance
       B. Judicial Roles and Political Consensus
V.   The Costs of Instrumental Reasoning and Unacknowledged
     Rationales
Conclusion

INTRODUCTION

Two significant reform movements transformed American criminal law in the quarter century that began in the late 1960s. Both are familiar, yet in the continuing story of American criminal law they rarely appear in the same narrative. In part that is surely because their origins and effects were starkly different; in critical ways they were in conflict. That conflict meant that, on core questions of criminal law, one reform movement had to win and the other had to lose. The effects of the movements' conflict continue today in the administration of state criminal law.

The first movement was the wave of criminal-code reform inspired by the American Law Institute's (ALI's) Model Penal Code (MPC), which was first published in 1962.

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